Judge Conduct To Be Reviewed After Rape Verdict (Canada)

[Aaron]

http://www.torontosun.com/news/canada/2 ... 18376.html

WINNIPEG - Protesters marched on the Law Courts on Friday and demanded Justice Robert Dewar be removed from the bench following his controversial comments about a rape victim's provocative attire.

"These statements by (Justice) Dewar are reinforcing the myth of implied consent and the myth that a victim of sexual assault is ultimately responsible for their own victimization," said Alanna Makinson of the Canadian Federation of Students.

About 100 protesters waved placards bearing messages including "Dewar resign now" and "No such thing as implied consent." The group's chants prompted honks from several passing motorists.

"I'm disgusted with the issue," said Bob Hudson. "This judge is way out of line and should be tossed, as far as I'm concerned."

Dewar convicted Thompson resident Kenneth Rhodes of sexually assaulting the 26-year-old victim 4 1/2 years ago. Dewar rejected a Crown recommendation Rhodes be sentenced to at least three years in prison and instead granted him a conditional sentence.

Dewar said the victim and a friend were dressed in tube tops and high heels when they met Rhodes and another man outside a bar "and made it publicly known that they wanted to party."

Rhodes, Dewar said, had the mistaken belief "sex was in the air" and a "heightened expectation" that sex would occur.

Court heard the victim rebuffed Rhodes three times before he raped her on the side of a road. Rhodes admitted telling the woman "it would only hurt for a little while."

Dewar said Rhodes described the incident as "a case of misread signals." Dewar's verdict in another sex assault case is currently before the Manitoba Court of Appeal.

Last summer, Dewar acquitted a man charged with several counts of sexually assaulting a young girl. The Crown appealed the ruling, arguing Dewar erred in his assessment of the accused man's evidence and the evidence of the alleged victim, and that Dewar engaged in "inappropriate speculation."

The appeal was heard earlier this month. The high court has reserved its decision.

COUNCIL REVIEWS COMMENTS

Comments by a Manitoba judge in a controversial sex assault ruling are being reviewed by the Canadian Judicial Council.

Justice Robert Dewar made explicit references to the victim's attire and suggested her attacker believed "sex was in the air." Last week, Dewar rejected a Crown appeal for a stiff prison sentence and granted the Thompson man a conditional sentence of two years less a day.

Judicial council executive director Norman Sabourin said the council is reviewing complaints about the judge's comments.

The council "takes the review of all complaints seriously," Sabourin said in a news release. "The complaints against Justice Dewar will be reviewed in accordance with the council's complaints procedures."

The province will also be filing a complaint with the council, Labour and Immigration Minister Jennifer Howard said Friday afternoon.

Howard, also the minister responsible for the status of women, said the move has nothing to do with Dewar's ruling, but with his comments.

"We felt it was important to support women who are victims ... and to let them know that we take their rights seriously," she said. "We take the credibility of the justice system very seriously."

The Canadian Judicial Council is the same body reviewing the conduct of Justice Lori Douglas. Douglas removed herself from active bench duty last September after it was revealed nude pictures of her ended up on the Internet.

I heard on the radio this morning (Chez 106 Ottawa) that the Judge has been barred from hearing sexual assault cases until the review is over. I don't have much to add beyond pointing out that even though we seem to be ahead of lots of other parts of the world, odd attitudes like this still linger.

[Molyneux]

I certainly hope that the judge loses his position over this. Anyone who would defend the decision needs a very swift reality check.
If a supermodel were to walk mother-naked into a bar on a Friday night, that isn't even close to justification for rape. Looking is fine, but it shouldn't be that hard to understand that touching without permission is a very bad thing.

[Darth Fanboy]

4 1/2 years for RAPE?

That seems absurdly low, am I just uninformed?

[weemadando]

We had this controversy in Australia throughout the 90s as a lot of the judiciary was taken through the wringer after some choice comments in rape trials like: "Sometimes no means yes."

[Keevan_Colton]

4 1/2 years for RAPE?

That seems absurdly low, am I just uninformed?

He didnt even get that, if I've read right he just got a two year suspended sentence.

[Aaron]

If I remember correctly, a conditional sentence is basically "don't fuck up for so many years and you don't get a record."

[Darth Fanboy]

4 1/2 years for RAPE?

That seems absurdly low, am I just uninformed?

He didnt even get that, if I've read right he just got a two year suspended sentence.

Shit you're right, I totally read that wrong, that fucking absurd. Still the recommendation was only 3 years?

Look I knowI'm American and we have serious issues with our prison system and that this incident took place in Canada where the standards are different but rape is a violent and despicable crime and 3 years seems fairly lenient.

[Temjin]

Shit you're right, I totally read that wrong, that fucking absurd. Still the recommendation was only 3 years?

Look I knowI'm American and we have serious issues with our prison system and that this incident took place in Canada where the standards are different but rape is a violent and despicable crime and 3 years seems fairly lenient.

Which is why he's being raked over the coals right now in public opinion.

Winnipeg Free Press - PRINT EDITION
Judge sexist, must quit: crowd
Jurist pulled from sex cases after comments on rape victim

By: Melissa Martin

Posted: 03/2/2011 1:00 AM | Comments: 42

Justice Robert Dewar: under fire

Justice Robert Dewar: under fire (KEN GIGLIOTTI / WINNIPEG FREE PRESS ARCHIVES)

A judge's words about a sexual assault victim launched international outrage, sparked a federal judicial review, and led to his being turfed from presiding over sexual assault cases.

But that response is not enough, advocates said on Tuesday night. Not enough, not yet.

In the wake of a Friday rally that drew around 150 people to the Law Courts demanding the resignation of Queen's Bench Justice Robert Dewar, about 40 people came together at the University of Winnipeg on Tuesday night.

Their mission: to plan the next steps in a response to Dewar's comments, at a Feb. 18 sentencing in Thompson for convicted rapist Kenneth Rhodes, that "sex was in the air" when the victim wore a tube top, makeup and high heels to the bar on the night she was attacked.

Since the comments became public last week, response from government and the judiciary came fast and furious. The Crown is considering appealing the sentence; it has 30 days to do so. The province announced it would file a formal complaint with the Canadian Judicial Council, which has launched an official investigation into Dewar's comments.

In Parliament on Tuesday, opposition leaders called on government to ensure judges receive better training. "They need some awareness of violence against women," said Liberal Status of Women critic and Winnipeg South Centre MP Anita Neville.

"Is (Dewar's ruling) consistent with the government's message about violence against women?"

And on Tuesday, Manitoba Chief Justice Glenn Joyal issued a written statement saying Dewar will continue sitting on the bench but with a limited caseload, which will not include cases relating to sex crimes.

Joyal did not speak directly to the comments. "While the court recognizes this matter to be of obvious public concern, any public comment by the judiciary would, at this point, be inappropriate for two basic but important reasons," Joyal said.

"First, an appeal of the sentence...is currently being contemplated by the Crown. Second, the Canadian Judicial Council has now received and will be reviewing complaints made in respect of Justice Dewar's comments."

For advocates at Tuesday night's meeting, those words were not enough. Attendees came from all backgrounds: university students, high school students, labour leaders, parents, social workers, and even a politician, Kirkfield Park MLA Sharon Blady, who holds a PhD in women's studies and once taught about many of the same issues raised by Dewar's comments.

But when it came time to ponder the next action in a long-term response to those comments, attendees spoke in one voice. "Do we still want him to resign?" discussion leader Liz Carlyle asked the crowd.

"Yes," the 40 voices replied, in unison.

How will that demand take shape? Attendees proposed a pile of potential actions. There may be letter-writing campaigns to judicial leaders; there may be regular rallies until Dewar resigns. On the long-term end, advocates proposed launching education campaigns; providing advocates and support to court proceedings; and calling for an overhaul of the justice system that would see judges streamed into cases according to their expertise.

Dewar had primarily a civil law background when he was appointed to the bench in 2009.

For now, leaders agreed to tie an organized response to Dewar's comments into activities for International Women's Day on March 8, including participating in a downtown march that will begin at 4:30 p.m.

It's a start, some said. "I have a son who wanted to come tonight. He's nine years old, and he understands what consent means," said Karyn Delichte, 36, a University of Manitoba student who came to the meeting ready to brainstorm.

melissa.martin@freepress.mb.ca

Republished from the Winnipeg Free Press print edition March 2, 2011 A4

[Teebs]

If I remember correctly, a conditional sentence is basically "don't fuck up for so many years and you don't get a record."

Actually it's "don't fuck up for so many years and you don't to prison" you still get a record. At least in the UK.

[Aaron]

I think your right:

http://www.justice.gc.ca/eng/pi/pcvi-cpcv/cond.html

What is a conditional sentence?

When a court finds a person guilty of a crime, the person may be sentenced to time in prison or, in certain circumstances, may be allowed to serve the sentence in the community. This is called a conditional sentence.

During a conditional sentence, the offender is supervised and must follow the rules set by the judge or risk going to prison.

When is a conditional sentence possible?

A judge can give an offender a conditional sentence when:

* the Criminal Code does not set a minimum prison term for the offence;
* the judge decides that the sentence should be less than two years;
* the judge setting the sentence is convinced that allowing the offender to remain in the community is not a danger to the public; and
* the judge is convinced that a conditional sentence is consistent with the purposes and principles of sentencing set out in the Criminal Code.

The judge has the authority to decide on the appropriate punishment for the offender and could decide to send an offender to prison even if a conditional sentence is possible.

What types of conditions can a judge set?

All conditional sentences have the following conditions. The offender must:

* keep the peace and be of good behaviour;
* go to court when required;
* report to a criminal justice system supervisor regularly;
* stay in the area under the court's authority and get written permission to travel outside this area; and
* tell the court or criminal justice system supervisor before moving or when changing jobs.

In addition to these conditions, a judge can tailor the conditions to the needs of the offender, the victim and the community by setting other conditions that the offender has to follow. For example, a judge might require the offender to:

* pay the victim restitution;
* make other reparations to the victim or to the community;
* participate in a treatment program (for example an alcohol, drug or anger management program);
* provide support for any dependents (such as a child or spouse);
* do up to 240 hours of community service work; or
* respect a curfew, for instance by staying at home except to go to work or to approved activities, such as a treatment program or community service.

As well, a judge could prohibit an offender from:

* using alcohol or drugs, and
* possessing a gun, rifle or other weapon.

The Supreme Court of Canada has decided on several cases involving conditional sentencing. The Court has made it clear that conditional sentences should generally include punitive conditions that restrict an offender's liberty, such as house arrest. The Court has said that a conditional sentence is a punishment, which also promotes a sense of responsibility in the offender and has the objectives of rehabilitation and reparation to the victim and the community.

What happens if the offender does not follow the conditions in the sentence?

A conditional sentence is a prison term that the offender is allowed to serve in the community, according to the set conditions. If the offender does not follow the conditions, he or she will be brought back to court and the judge can order the offender to serve the rest of the sentence in prison.

Can a victim of the crime have a say in court?

Yes. A victim can prepare a victim impact statement, describing the harm done and the loss suffered. Although the victim impact statement should not include the victim's views on a punishment, it may help the judge to decide on appropriate conditions to include in a conditional sentence, if a conditional sentence is being considered.

A judge must take a victim impact statement into account when deciding on the appropriate punishment for an offender.

Where is more information available:

If you or someone you know have been a victim of crime, help is available. All provinces and territories have services for victims of crime. They can help if you need information or other assistance.

Policy Centre for Victim Issues
Department of Justice
112 Kent Street, Suite 870
Ottawa, Ontario
K1A 0H8

I got it mixed up with Conditional Discharge.

[Todeswind]

4 1/2 years for RAPE?

That seems absurdly low, am I just uninformed?

Rape law varies drastically from country to country and even state to state. A rape case that would get a sentencing of ten years in the USA or Canada might only get a penalty of a couple of years in Mexico or Argentina (assuming you're convicted at all). Japan is notorious for having lax rape laws, the minimum penalty for rape being 3-5 years shorter than most other crimes... including theft.

For Canada a four year Jail sentencing seems low and a conditional two year sentencing is unacceptable.

[Aaron]

I imagine that the Crown will appeal this anyways, and this being his second such fuck up, well...I don't think he's long for the bench. It'll be interesting to see what the high court has to say about the previous case.

[Teebs]

I think your right:

I am a law student

I got it mixed up with Conditional Discharge.

I'm glad you brought that up. I remembered it differently and the study materials I have say discharges are indeed convictions but without further punishment but checking the actual primary legislation says you're right. Time to write to my criminal litigation teacher I think.

[Eleas]

Look I knowI'm American and we have serious issues with our prison system and that this incident took place in Canada where the standards are different but rape is a violent and despicable crime and 3 years seems fairly lenient.

Nitpick: rape isn't a violent crime. Violent rape is a violent crime. The definition of rape is not (should not be, at least) based on the typical assaulted-by-a-stranger motif, because that sort of situation is statistically in minority.

[spartasman]

Nitpick: rape isn't a violent crime. Violent rape is a violent crime. The definition of rape is not (should not be, at least) based on the typical assaulted-by-a-stranger motif, because that sort of situation is statistically in minority.

What exactly would an example of a "non-violent rape" be? Because, by the understanding that I have, rape occurs any time the woman is forced into sex against her will, and since that always involves a form of violence, I do not see how any rape could be considered non-violent.

[Eleas]

What exactly would an example of a "non-violent rape" be? Because, by the understanding that I have, rape occurs any time the woman is forced into sex against her will, and since that always involves a form of violence, I do not see how any rape could be considered non-violent.

Roofies. Sexually abusive parents. Prostitution of someone who has no recourse but obey. And a thousand other factors.

Also, and I hope you don't take this the wrong way, but your understanding is flawed. Once consent is revoked, crossing that line makes it rape. That line doesn't have to be crossed through outright physical violence; not unless by violence you mean violating her consent, which isn't really a tenable definition.

[Dave]

Nitpick: rape isn't a violent crime. Violent rape is a violent crime. The definition of rape is not (should not be, at least) based on the typical assaulted-by-a-stranger motif, because that sort of situation is statistically in minority.

What exactly would an example of a "non-violent rape" be? Because, by the understanding that I have, rape occurs any time the woman is forced into sex against her will, and since that always involves a form of violence, I do not see how any rape could be considered non-violent.

Sex with an unconscious woman, sex with a drunk woman who was unable to give consent, statutory rape, etc.

EDIT: Eleas beat me to it.

[spartasman]

Roofies. Sexually abusive parents. Prostitution of someone who has no recourse but obey. And a thousand other factors.

Considering that those instances you named involve the drugging and/or intimidation of a woman, I would say those qualify as a violent rape. I'm a bit ambiguous of what you mean by "a thousand other factors," though.

Sex with an unconscious woman, sex with a drunk woman who was unable to give consent, statutory rape, etc.

I suppose that I should have clarified that I was including these sorts of sexual assaults when I was referring to 'violent rape'.

Also, and I hope you don't take this the wrong way, but your understanding is flawed. Once consent is revoked, crossing that line makes it rape. That line doesn't have to be crossed through outright physical violence; not unless by violence you mean violating her consent, which isn't really a tenable definition.

How is that not a tenable definition? If the woman (or whoever) is not giving consent, or unable to give or deny consent (either by condition or law), then the man (or whoever), is committing a sexual assualt which qualifies as a violent rape. Also, I'm not exactly sure what you mean when you say "once consent is revoked?" Do you mean during the act, or after, or what?

[Simon_Jester]

Logically, spartasman, the term "violent rape" should mean that there is actual violence, or the threat of violence, involved. Getting someone so drunk that they lose the ability to say "this is a bad idea, don't do it" is not the same thing as violence. But, if this is used as a way to get someone to have sex with you, it's still rape even if it isn't violent.

[Eleas]

Roofies. Sexually abusive parents. Prostitution of someone who has no recourse but obey. And a thousand other factors.

Considering that those instances you named involve the drugging and/or intimidation of a woman, I would say those qualify as a violent rape. I'm a bit ambiguous of what you mean by "a thousand other factors," though.

Well, Dave gave one. There's no point in giving a full list, because that list would include any and all nonconsensual sexual that wasn't prompted by bodily harm or threat of bodily harm. That's the generally accepted term for "violence".

I suppose that I should have clarified that I was including these sorts of sexual assaults when I was referring to 'violent rape'.

Possibly. But, just as an example, the FBI does not agree with your definition.

For UCR reporting purposes, can a male be raped?

No. The UCR Program defines forcible rape as “The carnal knowledge of a female forcibly and against her will” (p. 19). In addition, “By definition, sexual attacks on males are excluded from the rape category and must be classified as assaults or other sex offenses depending on the nature of the crime and the extent of injury” (p. 20). An aggravated assault is a Part I offense and would be reported on the Return A form. (A simple assault is a Part II offense but also would be reported on the Return A form.) Sex offenses qualify as Part II offenses and would be reported on the appropriate Age, Sex, and Race of Persons Arrested form (pp. 96 and 142).

However, in the National Incident-Based Reporting System (NIBRS), a sexual assault on a male by a female could be classified as a forcible rape, depending on the nature of the attack and the extent of the injury. For NIBRS reporting purposes, forcible rape is defined as “The carnal knowledge of a person, forcibly and/or against that person’s will; or not forcibly or against the person’s will where the victim is incapable of giving consent because of his/her temporary or permanent mental or physical incapacity (or because of his/her youth)” (UCR Handbook, NIBRS edition, 1992, p. 21). In the NIBRS, at least one offender must be of a different sex than the victim for the event to be classified as a forcible rape. For example, a female can rape a male, or in the case of multiple offenders, a female and male can rape a male. However, a male cannot rape another male, or in the case of multiple offenders, two males cannot rape a male.

That's just one single (very far-reaching) consequence of defining violent rape in this way. On a practical level, it tends to put the burden on the victim to produce evidence of injuries. Otherwise, well, can't have been a rape, because rapes are violent.

How is that not a tenable definition? If the woman (or whoever) is not giving consent, or unable to give or deny consent (either by condition or law), then the man (or whoever), is committing a sexual assualt which qualifies as a violent rape. Also, I'm not exactly sure what you mean when you say "once consent is revoked?" Do you mean during the act, or after, or what?

No. Before or during. Anything else I'd say is impossible for anyone to judge. The problem is, you're making an argument based on where the matter would end up in a contested system (the idea of sexual assault as necessarily being violent rape), which largely would make it circular.

Regardless, the utility of calling it "violent" is void because if "rape" is already violent, then there's no need for the qualifier, and historically the word is used to denote physical trauma or overwhelming threat". This conflates the two, does so in a muddy manner, and as we've seen in the quote above is apt to be applied to the detriment of the victim.

[Aaron]

Yes guys, that's why the crimes are labelled as "sexual assault" here, though rape is often used interchangeably, the idea is that the term "rape" was to narrow.

I am a law student

UNCLEAN!

I'm glad you brought that up. I remembered it differently and the study materials I have say discharges are indeed convictions but without further punishment but checking the actual primary legislation says you're right. Time to write to my criminal litigation teacher I think.

Hmm, so if you get a conditional discharge in the UK it only counts as a conviction until the time period is up? Because that's how it works here. I just find it kind of confusing, not being a lawyer and all.

[Darth Fanboy]

4 1/2 years for RAPE?

That seems absurdly low, am I just uninformed?

Rape law varies drastically from country to country and even state to state. A rape case that would get a sentencing of ten years in the USA or Canada might only get a penalty of a couple of years in Mexico or Argentina (assuming you're convicted at all). Japan is notorious for having lax rape laws, the minimum penalty for rape being 3-5 years shorter than most other crimes... including theft.

For Canada a four year Jail sentencing seems low and a conditional two year sentencing is unacceptable.

Thanks for...not answering my question at all. I thought Canadian Law was far more stringent on rape than this and telling me what it's like in MExico and Japan really has no bearing whatsoever.

Look I knowI'm American and we have serious issues with our prison system and that this incident took place in Canada where the standards are different but rape is a violent and despicable crime and 3 years seems fairly lenient.

Nitpick: rape isn't a violent crime. Violent rape is a violent crime. The definition of rape is not (should not be, at least) based on the typical assaulted-by-a-stranger motif, because that sort of situation is statistically in minority.

Okay so some rape isn't technically violent by the letter of the law, that shouldn't make it any more tolerable in any fucking instance. In this case anyway, it is my understanding that the woman was assaulted and the guy as of now is getting a less than a slap on the wrist sentence.

[Todeswind]

Rape law varies drastically from country to country and even state to state. A rape case [Edit:like this one] that would get a sentencing of ten years in the USA or Canada might only get a penalty of a couple of years in Mexico or Argentina (assuming you're convicted at all). Japan is notorious for having lax rape laws, the minimum penalty for rape being 3-5 years shorter than most other crimes... including theft.

For Canada a four year Jail sentencing seems low and a conditional two year sentencing is unacceptable.

Thanks for...not answering my question at all. I thought Canadian Law was far more stringent on rape than this and telling me what it's like in MExico and Japan really has no bearing whatsoever.

I've bolded the relevant answers to your question.

Ten years is the common jail sentence for violent rape though most offenders are conditionally paroled within 4-5. However as we are discussing a total absence of prison time its so absurd that it hardly beard mentioning the standard

As I was unsure of your country of origin or residence providing context to the fact that Rape law is by no means standard in either the continent of America or Western nations seemed relevant.

[Darth Fanboy]

You do realize I said I was American in this thread...

[Todeswind]

No I did not.

EDIT: You mentioned you were American after the post I responded to.